§ 42-101 — Marriage a civil contract

Nebraska § 42-101

• Jurisdiction: Nebraska
• Ch. 42: Households and Families

Text

In law, marriage is considered a civil contract, to which the consent of the parties capable of contracting is essential.

Legislative History

Source: R.S.1866, c. 34, § 1, p. 254; R.S.1913, § 1540; C.S.1922, § 1489; C.S.1929, § 42-101; R.S.1943, § 42-101. Cross References: Agreements based on consideration of marriage, must be written, see section 36-202. Child whose parents marry is legitimate, see section 43-1406. Annotations: 1. Nature of contract 2. Agreement of parties 3. Validity of marriage 4. Common-law marriage 5. Miscellaneous 1. Nature of contract Although this section denotes marriage as a "civil contract," persons entering into matrimony establish a social status, not a contractual relation. Edmunds v. Edwards, 205 Neb. 255, 287 N.W.2d 420 (1980). Where consent is obtained by fraud, marriage may be annulled. Zutavern v. Zutavern, 155 Neb. 395, 52 N.W.2d 254 (1952). Marriage is a civil contract which, if procured by fraud, may be set aside. Hudson v. Hudson, 151 Neb. 210, 36 N.W.2d 851 (1949). State is always a party. Willits v. Willits, 76 Neb. 228, 107 N.W. 379 (1906). Consent of state is necessary. Eaton v. Eaton, 66 Neb. 676, 92 N.W. 995 (1902). Marriage is a social status, and only in a limited sense is the relation contractual. University of Michigan v. McGuckin, 64 Neb. 300, 89 N.W. 778 (1902). 2. Agreement of parties Consent of parties mentally competent is required. Kutch v. Kutch, 88 Neb. 114, 129 N.W. 169 (1910). Mental weakness alone does not avoid contract. Aldrich v. Steen, 71 Neb. 33, 98 N.W. 445 (1904). 3. Validity of marriage It is not a ground for annulment that license was wrongfully obtained where parties are competent and marriage is fully consummated. Baker v. Baker, 112 Neb. 738, 200 N.W. 1003 (1924). Marriages valid in Indian tribe under Indian customs, are valid here. Ortley v. Ross, 78 Neb. 339, 110 N.W. 982 (1907). Marriage is valid where minds of competent parties meet. University of Michigan v. McGuckin, 62 Neb. 489, 87 N.W. 180 (1901). Where marriage is celebrated in good faith, it is binding though parties had agreed it should not be. Hills v. State, 61 Neb. 589, 85 N.W. 836 (1901). 4. Common-law marriage Since 1923, common-law marriages cannot be made in this state. Collins v. Hoag & Rollins, 122 Neb. 805, 241 N.W. 766 (1932), reversing 121 Neb. 716, 238 N.W. 351 (1931). 5. Miscellaneous Agreements to separate are against public policy. Brun v. Brun, 64 Neb. 782, 90 N.W. 860 (1902).